Representatives of the executive and legislative bodies have been talking about the need to make constitutional changes for a long time. On 5 November, the Ministry of Justice organized discussions on Constitutional reforms.
Iravaban.net has launched a series of interviews, with the objective to present the observations and opinions of experts in the field on the need for constitutional reform.
We talked on the topic with Ms Anahit Manasyan, Candidate of Juridical Sciences, Associate Professor.
– Ms Manasyan, the Ministry of Justice announced the initiation of the constitutional reform. To what extent its need is justified for it now?
– The change of public relations in a specific society, as a rule, leads to the necessity of constitutional developments. The reason is the need for constitutional regulations to be adequate to the level of development of public relations. It is another matter that when talking about constitutional developments in our social system, the method of textual change of the Constitution is mostly emphasized. Meanwhile, the latter is not the only known and effective way of constitutional developments in international practice.
The experience of countries with a developed constitutional system shows that the systems that combine different ways of developing the Constitution, in particular, textual changes, formal interpretation of the Constitution and constitutional development through the strengthening of constitutional traditions, succeed in this area.
I think at this moment we have the need to form a proper culture of combining the mentioned methods related to the Constitution, to which, first of all, any process of constitutional development can be directed. The next important circumstance at this moment, in my deepest conviction, is the rooting of the proper constitutional culture and traditions and their development. Without the guarantee of the mentioned circumstance, no text change can serve its real purpose. As for the textual amendments to the Constitution, during the operation of certain constitutional regulations, one may notice the need to improve their content or the practice of their application. However, not every such record leads to the need for a constitutional text change, taking into account the circumstances I mentioned. Therefore, there is a need for constitutional development constantly, along with the change of public relations, but that development should not always be realized through textual changes. And to identify the need for textual changes, it is necessary to assess several important factors and circumstances.
– What factors should be taken into account before the adoption of the new Constitution and what should be the process of implementation of constitutional reforms?
– Any process of constitutional reforms must meet several key criteria. The first important circumstance is that the mentioned process must be organized with the highest level of professionalism. It is about putting the existing professional standards in the legal, political, psychological, sociological and other related fields at the basis of the process and formulating the result of the reform accordingly.
The next key circumstance arising from this is that the change in the text of the Constitution, the transformation of this or that institution cannot be made solely on the basis of the political interests or preferences of a separate political force/forces. Any change must be based on a serious professional justification. This is evidenced by the positions of international consulting bodies on this issue.
The next important circumstance is that before each change in the text of the Constitution it is necessary to evaluate and combine the following factors: clearly identify the existing problems, offer solutions to them, assess the causal relationship between identified problems and proposed solutions, assess possible risks of proposed solutions, implement all relevant analysis of problems and solutions from the point of view of areas. Moreover, even as a result of the combination of the mentioned factors, it is necessary to take into account the exceptional importance of the proper implementation of alternative ways of developing the Constitution and the development of constitutional traditions. Proper communication with the public and the formation of an atmosphere of public solidarity during the process of constitutional reform is also crucial, under which conditions it is possible to have a successful process of constitutional development.
– RA Prime Minister Nikol Pashinyan once mentioned that during the crisis that arose in 2020, the parliamentary system of government showed its non-viability. Is there a need to change the way the country is governed?
– I attach great importance to the study of the reasoning behind the existing ideas regarding the need to change the form of government, because such a need can be finally reached only in the conditions of recording a clear causal link between the existing reasons, the existing problems and the possibility of solving those problems. Therefore, in order to present conclusions on the issue, it is very important to present complete information on the mentioned circumstances and, as a result, to analyze it.
At the same time, I consider it necessary to record some key circumstances related to the issue. I agree with the idea that certain mechanisms of separation and balance of powers in the Republic of Armenia need to be improved. However, I am not sure that all this is based on the fact that the parliamentary model of government is not viable. When we talk about the forms of government in general, in our public system we are often guided by mythical ideas, for example, by the parliament having a primary role in the parliamentary system of government, and the president in the presidential system, and other perceptions. However, from a professional point of view, the mentioned perceptions are not always complete and clear. For example, in the presidential system of government, the parliament has serious mechanisms of parliamentary control, and from the states with a modern parliamentary form of government, we know many leaders of the executive power, who enjoy serious authority, and so on.
We can talk for a long time about management models and their modern perceptions, which, I think, is not the purpose of the mentioned interview. In this context, I would just like to state that in the conditions of any model of government, the functional sphere of each branch of government does not change; the legislative power is exercised by the parliament in all cases, having appropriate parliamentary control mechanisms. Executive or judicial functions, in turn, are not transferred from one branch of government to another. Of course, in the context of different governance models, there are peculiarities of mechanisms of separation of powers and balance. Along with all that, it should be noted, that as a result of modern processes of legal convergence, even governance models have borrowed from each other their previously uncharacteristic mechanisms; and in that sense, in many cases, the rapprochement of the latter is noticeable.
Therefore, I think that in terms of improving the governance mechanisms, it is not the choice of a specific model that is of primary importance, but the establishment of professional and appropriate mechanisms for the separation and balancing of powers in that context. Moreover, it should be borne in mind that the establishment of any model of government and any mechanism within the scope of the latter is primarily based on the need to form appropriate traditions, which cannot be achieved in the face of constant change. The clarity of the functions of each branch of government, the exclusion of dualism of executive power, etc. is also important from a professional point of view in terms of the issue under discussion. Therefore, in terms of establishing a governance model, the formation of relevant traditions in this area is of paramount importance, which, of course, can be combined with the improvement of separate mechanisms of separation of powers and balance. At the same time, I think the last circumstance is not necessarily conditioned by the factor of changing the form of government.
– The Professional Committee on Constitutional Reforms (the activity of the Committee was suspended due to 2020 Karabakh war), on 22 August 2020, adopted the draft concept of decentralization of Constitutional Control and unification of the highest courts, in particular the establishment of the Supreme Court. To what extent is the decentralization of Constitutional control and the creation of the Supreme Court justified?
– I expressed my opinion on the mentioned issue last year, during the discussions and voting in the Committee. I have also presented my position on the proposed conceptual approach and the underlying justifications within the framework of public discussions. To summarize, all models of constitutional justice are acceptable to me, as they all offer adequate solutions to existing problems. At the same time, such a serious transformation of institutions can succeed only if the specific criteria necessary for constitutional changes are maintained, which I have already talked about in the context of the previous questions. The rationale for the conceptual approach under discussion did not give me the professional impression that the need to change the model was justified by the observance and existence of the above criteria.
In particular, I agreed with the existence of some of the problems registered in the presented concept, I considered the existence of others, at least in the diagnosed format, debatable. At the same time, I have stated that even the existence of these separate issues is conditioned by reasons that are not directly related to the choice between the models of constitutional justice.
But more importantly, all the registered problems have their clear solutions within the framework of the current model of constitutional justice. This is also suggested by the experience of many countries with a more or less equivalent to the current model of Armenia and a developed system of constitutional justice. Therefore, even if certain diagnosed problems require a solution, it is clear that the primary factor in finding solutions is not a change in the model, as the causes of the existing problems are in completely different dimensions.
Considering that the priority for me is not the partial or situational solution of the existing problems, but their complete overcoming, I consider it important to diagnose the causes of the problems and eliminate those causes. From the point of view of eliminating the causes, it is important to diagnose the chosen solutions, the actual opportunities and possible dangers of their proper implementation, and to record the proper balance between all this.
It should also be borne in mind that other models of constitutional justice also assume the existence of many problematic issues and situations, which should also be adequately discussed and assessed in the context of possible risks. Thus, although the Institute of Constitutional Justice in Armenia needs further improvement, this does not have to be associated with a change in the model. Moreover, the need for such a serious change must be justified by the observance and existence of the criteria I have already presented. Therefore, in case the issue is discussed again, I attach importance to the complete presentation and analysis of possible new justifications, which is necessary in terms of forming a proper position on the approach.
– Experts in the field of anti-corruption argue that providing constitutional status and guarantees of independence to anti-corruption bodies, such as the Commission for the Prevention of Corruption and the Anti-Corruption Committee, will increase the independence and efficiency of these institutions. What is your opinion on this issue?
– The answer to this question for me comes from the same principles and values that I have already spoken about in other questions. It is obvious that it is not possible to solve the problems in our social system by merely fixing separate constitutional regulations. Therefore, the formation of a proper constitutional and political culture in all spheres is of paramount importance.
As for the changes in the text of the Constitution, regardless of their sectoral nature, the maintenance of the necessary criteria for the implementation of constitutional reforms is crucial. If they are maintained and in the presence of a proper culture, we can talk about the formation and development of independent and effective systems. Conversely, regardless of the scope and extent of the changes, if the above-mentioned circumstances are not observed, the primary goal of forming the mentioned systems also fails.
Yevgenya Hambardzumyan
